20-003460/AABS
Released Date: 04/20/2021
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Dosta Sopkic
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Neha Kohli, Paralegal
For the Respondent:
Shivani Mehta, Counsel
HEARD:
By way of written submissions
OVERVIEW
1D.S. was injured in an accident on November 5, 2017, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)1. As a result of her injuries, which are described as insomnia, panic attacks, lower back pain, pain underneath her breast and trouble sleeping, she sought payment for physiotherapy to treat her accident-related impairments. Aviva denied the treatment plan on the basis that D.S. was in the Minor Injury Guideline (the “MIG”). Aviva conducted s. 44 examinations and determined that D.S. had suffered predominantly minor injuries and that the treatment plan for physiotherapy was not reasonable and necessary. D.S. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2I am asked to determine the following issues:
a. Are D.S.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
b. Is the medical benefit in the amount of $2,025.00 ($3,005.00, less $980.00 approved) for physiotherapy services, recommended by Physiomed in a treatment plan (OCF-18) dated May 15, 2018, reasonable and necessary?
c. Is D.S. entitled to interest on any overdue payment of benefits?
FINDING
3D.S. has failed to demonstrate that her accident-related injuries warrant removal from the MIG. As the MIG limits have been exhausted, she is not entitled to the balance of the OCF-18 or interest.
ANALYSIS
Did D.S. suffer predominantly minor injuries?
4Under s. 18(1) of the Schedule, medical benefits are limited to $3,500.00 if the insured sustains impairments that predominantly a minor injury in accordance with the MIG. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. Alternatively, under s. 18(2), if they have a documented pre-existing injury or condition combined with compelling medical evidence which states that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. At all times, the burden of proof rests with the applicant.
5D.S. relies on the clinical notes and records of her family physician, Dr. Teplinsky. Her first post-accident visit was on November 22, 2017, approximately 15 days after the accident. Dr. Teplinsky diagnosed her with muscle strain. A second visit is noted on December 11, 2017, when D.S. presented with ongoing back and neck pain and headaches. Dr. Teplinsky advised that she should continue with medication.
6Diagnostic imaging consisting of a cervical and lumbar spine x-ray on December 11, 2017, revealed minor degenerative changes. D.S.’s submissions on the OCF-18 lack any analysis to support how the treatment she seeks is reasonable and necessary to address her alleged injuries. Further, there were no submissions to demonstrate why she should be removed from the MIG.
7On the evidence, it appears that D.S. appears to rely on her submissions, which are not evidence, in support of her claim for treatment. In addition, her submissions require me to formulate reasonings that are not apparent based on the limited evidence. Also, D.S. did not put forth a reply to rebut Aviva’s position. I find that D.S. has failed to meet her burden of proof with respect to her claim of entitlement to treatment.
8Accordingly, I find it unnecessary to set out Aviva’s argument or evidence. I note that Aviva provided the evidence of its denials and opinions of its s. 44 assessor in support of the reasoning for its determination that the OCF-18 is not reasonable and necessary and that D.S. suffered predominantly minor injuries.
CONCLUSION
9D.S. has not met her burden to demonstrate that treatment beyond the MIG is required. She is not entitled to the disputed OCF-18 or interest. The application is dismissed.
Released: April 20, 2021
Derek Grant
Adjudicator